T.V. Rahul vs M.Vinayak
2025 Latest Caselaw 4470 Tel

Citation : 2025 Latest Caselaw 4470 Tel
Judgement Date : 3 April, 2025

Telangana High Court

T.V. Rahul vs M.Vinayak on 3 April, 2025

HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY

                SECOND APPEAL No.151 of 2025

JUDGMENT:

The Second Appeal is filed questioning the judgment and

decree dated 03.02.2025, passed by the XXVII Additional Chief

Judge at City Civil Court, Secunderabad, in A.S.No.24 of 2023,

whereunder and whereby the judgment and decree dated

17.03.2023, passed by the III Senior Civil Judge, City Civil Court,

Secunderabad, in O.S.No.454 of 2014, was confirmed.

2. The appellant herein is defendant No.11 and the respondent

No.1 is plaintiff and respondent Nos.2 to 11 are defendant Nos.1 to

10 in the suit. For convenience, the parties hereinafter referred to as

they were arrayed in the suit.

3. The brief facts of the case, which led to filing of the present

Second Appeal, are that the plaintiff filed suit in O.S.No.454 of

2014 under Order VII Rule 1 of CPC seeking recovery of

possession of suit schedule property. By judgment and decree dated

17.03.2023, the trial Court partly decreed the suit with costs against

the defendants which reads as under:-

LNA, J

"(i) Directing the defendants to vacate and handover the suit schedule property to the plaintiff within two months from the date of this judgment.

(ii) Directing the defendants to pay a sum of Rs.5,856.40/- p.m. which is the quantum of rent on the date of termination notice towards past mesne profits for the month of December, 2014 along with interest at 12% p.a. from the date of the suit till the date of realization.

(iii) The plaintiff shall file a separate application under Order XX Rule 12 of CPC to enquire for ascertaining future mesne profits."

4. Aggrieved by the Judgment and decree dated 17.03.2023 in

O.S.No.454 of 2014, the appellant filed A.S.No.24 of 2023 against

the respondents and the same was dismissed vide impugned

judgment dated 03.02.2025, directing the appellant to vacate the

suit property within two months from the date of that order.

Challenging the same, this Second Appeal is filed.

5. Heard Sri P.Ram Chander, learned counsel representing Sri

Raj Kiran Pagadala, learned counsel for the appellant and Sri

Manjari S Ganu, learned counsel for respondent No.1, who is on

caveat.

LNA, J

6. Learned counsel for the appellant submitted that the first

appellate Court vide judgment dated 03.02.2025 dismissed

A.S.No.24 of 2023 on merits stating that no arguments were

advanced by the appellant. He further submitted that as per Order

XLI, Rule 17 of CPC, the appellate Court can dismiss the appeal for

default, if the appellant do not appear on the date fixed for hearing.

However, the Court cannot decide the matter on merits.

7. Learned counsel for the appellant relied upon the judgment of

the Hon'ble Supreme Court in Prabodh Ch. Das and

Anr.v.Smt.Mahamaya Das and Ors 1, wherein, it is held that the

Court cannot dismiss the appeal on merits, where the appellant

remains absent on the date fixed for hearing. He also relied upon

the judgment of the erstwhile High Court of Andhra Pradesh in

SK.Azgarali Vs.Sk.Nazir Basha 2, wherein, it is held that in view of

the clear language of Order XLI, Rule 17 of the code of Civil

Procedure (for short, 'CPC'), the appellate Court could have

dismissed the appeals for default but cannot pronounce judgment on

merits. Therefore, if the appellant does not appear on the date fixed

for hearing, the first appellate Court can dismiss the appeal for

AIR 2020 SUPREME COURT 178

2007 6 ALT 12; 2007 0 Supreme (AP) 560

LNA, J

default. However, cannot decide the appeal on merits without

hearing the appellant.

8. Learned counsel for the appellant placed on record, the

proceedings of the trial Court dated 05.12.2024, wherein, it is

recorded that the appellant was absent. No representation despite

keeping pass over till end of trial work since morning. Hence, the

Court treated no arguments on behalf of the appellant and

thereafter, proceeded to hear the matter on behalf of learned counsel

for respondent and passed the judgment on merits.

9. Learned counsel for the appellant further submitted that the

first appellate Court committed grave error in dismissing the appeal

on merits, without giving an opportunity of hearing to the appellant

and without appreciating the facts of the case in a proper

perspective and prayed to set aside the impugned order and remand

back the matter to the first appellate Court for fresh adjudication.

10. Learned counsel for respondent No.1 did not dispute the

above factual aspects and did not oppose remand of the matter.

11. Having considered the submissions made by learned counsel

for the appellant as well as learned counsel for respondent, it is

LNA, J

appropriate to refer to Order XLI, Rule 17 of CPC, which reads as

under:

"A reading of Order XLI Rule 17 of CPC would

manifest that if the appellant does not appear on the day

when the appeal is posted for hearing, the Court can

dismiss the appeal for default. However, the Court

cannot adjudicate the appeal on merits and pass

judgment without hearing the appellant".

12. In the present case, it is specific case of appellant that the

matter was posted to 03.02.2025 on which date, there was no

representation on behalf of appellant and no submissions were

made by his counsel on his behalf. However, the first Appellate

Court proceeded with adjudication of appeal on merits and passed

impugned order which is contrary to mandate under Order XLI,

Rule 17 of CPC.

13. In the light of the judgment of the Hon'ble Supreme Court in

Prabodh Ch. Das (first cited supra) and the judgment of erstwhile

the High Court of Andhra Pradesh in SK.Azgarali (second cited

supra), it is to be held that the impugned order passed by the first

appellate Court adjudicating the appeal on merits without hearing